The “Official Statement from WADA on the Vrijman ARTICLES Report”: Unintentional Proof to the Contrary? by Emile Vrijman*
I. Introduction In its initial response on May 31, 2006, WADA carefully re-iterat- 1.1 It is surely nothing less than remarkable that there has, to date - ed its position that, as far as this investigation was concerned,: particularly in view of the media attention which the matter of the alleged use by American cyclist Lance Armstrong of prohibited sub- “an investigation into the matter must consider all aspects - not limit- stances itself received at the time - been little or no substantive ed to how the damaging information regarding the athletes’ urine sam- response to, let alone criticism of, the findings of what has become ples became public, but also addressing the question whether anti - known as the “independent investigation of all facts and circumstances doping rules were violated by athletes”8 regarding the analyses of the urine samples of the 1999 Tour de France con- ducted by the French WADA-accredited laboratory, the ‘Laboratoire and that: Nationale de Dépistage du Dopage’ (hereinafter: the ‘LNDD’) in Châtenay - Malabry, France”, as reported in “the Vrijman report”1. In “WADA will respond in due course once it has fully examined the spite of the very strong criticism expressed in this report regarding report”9. (the quality of) the research it conducted and its subequent behaviour in this matter, the LNDD has, to this day, not responded to any of However, on 2 June 2006, barely two days later and almost three the findings of the investigation, while the French newspaper weeks before the results of WADA’s examination of the Vrijman ‘L’Equipe’ - responsible for publishing the relevant article in which report were published, WADA Presient Richard Pound, already con- Lance Armstrong was accused of using the prohibited substance cluded in an interview with the press agency “Agence France - Presse” “recombinant erythropoetin” (“r-EPO”) during the 1999 Tour de (“AFP”) that the investigation report was full of holes. “They put as France2 - merely stated in an editorial that it continued to support facts things that are suppositions, suspicions and possibilities”, said fully the findings of its own investigation. Pound10. He also announced that WADA rejected the “Vrijman report” and “will consider legal action against Vrijman and any organi- “There is nothing to retract from the revelations. [...]. For our part, we zations including the UCI, that may publicly adopt its conclusions”11. On remain convinced of the need to battle without compromise against 19 June 2006, WADA eventually published its so-called “Official mafialike tendencies that still and always threaten the sport of cycling. Statement From WADA On The Vrijman Report” (hereinafter: “the Both in the method and the substance, L’Equipe stands firm.” 3 Statement”), “highlighting a number of unprofessional, inaccurate, unfair and misleading elements of the [Vrijman] report”12. . Procedural aspects Where there has been criticism in respect of the investigation that has 1.4 Purpose of this article been conducted, it usually related to the procedural aspects of that Based on a general analysis of (the content of) the Statement itself, this investigation. The premature publication of the most important find- article will examine in detail WADA’s criticism regrading (the conduct ings of the investigation in the Netherlands newspaper “de Volkskrant” of) the investigation in general and, more specifically, its results, in on May 31, 2006, in particular appears to have been the cause of this4. particular as far as the assessment of (the extent and nature of) For some, also my reputation as being pro-athlete - earned because of WADA’s involvement in this matter and the legitimacy of that the role I allegedly played according to some in the doping affair involvement are concerned. Furthermore, this article will show why involving the German athletes Katrin Krabbe, Grit Breuer and Silke both the manner of WADA’s response, as well as the arguments it has Möller - as well as my being acquainted with Mr. Hein Verbruggen, put forward in the Statement, appear to confirm - it must be assumed the current Vice-President of the “Union Cycliste Internationale” unintentionally - rather then deny the investigation’s findings and (“UCI”), the International Cycling Federation, did already provide assessment of WADA’s involvement in this matter. sufficient reason to criticise (the results of) the investigation that had Finally, this article will consider whether, and to what extent, the been conducted, in particular as far as its “independence” and “impar- investigation’s findings regarding WADA might, at the same time, tiality” were concerned5. provide a possible explanation for the absence of any response or reac- tion, let alone action, by the “International Olympic Committee” 1.3 WADA’s response (“IOC”), “International Sports Federations” (“IFs”) and national gov- Apart from Lance Armstrong6 and the UCI7, the only other party ernments. Given the fact, however, that almost one year has passed directly involved in this matter that did respond to (the substance of) since the “Vrijman report” was first published, I will begin by briefly the findings contained in the “Vrijman report” has been the “World summarising the principal facts and events which prompted the Anti - Doping Agency” (“WADA”). (“UCI”), the coordinating International Federation responsible for
*Former Director of NeCeDo (The Expresses Concern regarding Vrijman 6 Associated Press, “Report clears Armstrong both in nature, as well as in wording, to Netherlands Centre for Doping Affairs). Report”, May 31, 2006. of ’ doping allegations”, May 31, 2006. those usually made by athletes reported 2 Damien Ressiot, “Le mensonge 7 UCI Official Statement, “Vrijman report: as having been been found guilty of hav- 1 The expression “the Vrijman report” was d’Armstrong”, L’ Equipe, August 23, 2005. statement of the UCI”, Aigle, Switzerland, ing committed a doping offence. To date first used to describe the report of the 3 L’Equipe, June 1, 2006. June 2, 2006. however, no legal action has been taken “independent investigation of all facts and 4R.Kerckhoffs, “UCI woedend op advo- 8 WADA Expresses Concern regarding either against the investigator, Lance circumstances regarding the analyses of the caat Vrijman”, de Telegraaf, June 1, 2006. Vrijman Report, supra note 1. Armstrong or any organization having urine samples of the Tour de France See also: J. Macur and S. Abt, 9 WADA Expresses Concern regarding adopted the conclusions of the investiga- conducted by the French WADA-accredit- “Investigator and Anti-Doping Group Vrijman Report, supra note 1. tion, including the UCI. ed laboratory, the “Laboratoire Nationale Clash on Armstrong Test”, New York 10 Agence France-Presse, “WADA rejects 12 WADA, “WADA Official Statement on de Dépistage du Dopage” (LNDD) in Times, May 31, 2006. report that cleared Armstrong”, June 2, Inaccuracies of Vrijman Report”, Châtenay - Malabry, France”, by the 5 Jens Jungermann, “Der Schatten einer 2006. Montreal, Canada, June 19, 2006. “World Anti-Doping Agency” (WADA). gefallenen Radsportlegende”, Die Welt, 11 Id. The response of WADA’s President See: WADA press release, “WADA July 13, 2006. Pound bears a remarkable resemblence,
2007/1-2 3 the sport of cycling, at the time to commission the independent inves- Within days, heated debates were conducted in the media regard- tigation concerned, before proceeding to consider the main findings ing the credibility of the article in question, as well as the nature, the of the investigation in this matter as contained in the “Vrijman reliability and - above all - the purpose of the analyses conducted by report”. the LNDD21. All sports organisations and anti-doping bodies, both national and international, that had become involved in this affair in II. The reason for an investigation one way or another quickly agreed therefore, in the face of the public 2.1 An article in a newspaper commotion that had arisen, on the necessity of conducting an inves- On 23 August 2005, the French (sports) newspaper, L’Equipe, pub- tigation in this matter. The same could not be said, however, or at lished an article headlined “The Armstrong lie” written by the French least to a far lesser degree, with regard to the objective(s) of such an journalist Damien Ressiot13. In this article, Ressiot accused the investigation. American cyclist and seven times-winner of the Tour de France, Lance Armstrong, of having used the prohibited substance r-EPO during the 2.2 An investigation? 1999 Tour de France. According to Ressiot, six of Armstrong’s urine WADA and the UCI in particular strongly disagreed with one anoth- samples from the 1999 Tour de France allegedly tested positive for r- er regarding the objectives of the investigation. According to WADA, EPO when analysed by the LNDD as part of ongoing research to fur- the only aspect of this matter the UCI was really interested in to ther improve the existing detection method for r-EPO. In addition, investigate was the question of how confidential information in this Ressiot alleged that six urine samples, from six other riders, had also matter could have been disclosed. WADA however, took the position tested positive for r-EPO14. that such an investigation should be concerned with all aspects of the Ressiot was able to make this accusation against Armstrong because matter - including such questions as to whether the LNDD’s research he not only was aware of the contents of the relevant research report findings in this matter were correct, if the riders concerned had in fact of the LNDD, but also had in his possession copies of all doping con- committed an “anti-doping rule violation “ as well as the extent of the trol forms relating to the urine samples collected from Lance use of r-EPO, during both the 1998 and the 1999 Tours de France, Armstrong during the 1999 Tour de France. According to WADA, including the identification of those riders implicated in the use of r- Ressiot had, at his own request, obtained the copies of these forms EPO at the time - and not just one or two aspects only22. WADA from the UCI itself15. These copies revealed the original code numbers therefore informed the UCI in late September 2005 that it did not present on the glass bottles that had been used during the 1999 Tour wish to cooperate (further) in such a one-sided investigation and that de France to collect and store the relevant urine samples for each sep- it was considering the possibility, if necessary, of conducting its own arate doping control that had been carried out at the time on Lance investigation23. The UCI responded to this notification from WADA Armstrong. As the LNDD had, at the express and repeated request of by announcing on 6 October 2006 that it was concerned that “such WADA, in addition to the analytical findings for each urine sample, an investigation from WADA as an involved party, would be based on also specified in its research report for each of these urine samples - as aspects out of its [i.e. WADA’s] competencies” and that it had therefore “additional information” 16 - the aforementioned original code num- decided to appoint itself an independent investigator: “to undertake a bers, it was simple for Ressiot to establish - by comparing the code comprehensive investigation regarding all issues concerning the testing numbers appearing on the aforementioned doping control forms with conducted by the French laboratory of urine samples from the 1999 Tour the code numbers reported as such in the LNDD’s research report - de France”24. which of these urine samples from the 1999 Tour de France had been obtained from Lance Armstrong and what the result of the LNDD’s 2.3 Letter of Authority analysis that been17. The UCI explained what it had meant with the preceding words in Ressiot’s article triggered a storm of (widely varying) responses in its so-called “Letter of Authority” 25. In this letter, the UCI described in the international sports world. While Lance Armstrong, in his initial detail (the nature and scope of) the mandate the independent inves- response, expressly denied ever having used any Prohibited Substance tigator had been given. The latter was asked, as part of his investiga- and questioned the manner in which the LNDD apparently had con- tion, to: ducted the analyses of these urine urine samples, Tour de France director Jean - Marie Leblanc, by contrast, stated in an interview with “1.determine what the reason(s) has/have been for the LNDD to L’Equipe that, as far as he was concerned, it was a “proven scientific analyse, in 2004 or 2005, the urine samples collected at the 1998 and fact” that Armstrong had used a banned substance during the 1999 1999 Tours de France, which were being kept within its storage facili- Tour de France18. WADA chairman Richard Pound also considered ties and whether or not Third Parties might have been involved in the that “doping” was likely to have been used19, while Professor de decision making process regarding such analyses; Ceaurriz, director of the LNDD, in an interview with the 2. determine the manner in which the analyses of the aforementioned Netherlands newspaper “De Volkskrant” expressed having no doubt urine samples have been conducted by the LNDD, in particular with whatsoever as far as the results of his laboratory’s analyses were con- regard to compliance with any applicable procedures for WADA cerned20. accredited laboratories regarding research on and the analysis of urine
13 Ressiot, supra note 2. Samples from the Tour de France, de Volkskrant, October 23, 2005. Samples from the Tour de France, 14 Ressiot, supra note 2. Scholten c.s. Advocaten, The Hague, the 21 Prof. Ayotte, Director of the WADA - Scholten c.s. Advocaten, The Hague, the 15 See: Hedwig Kröner & Jeff Jones, Netherlands, May 31, 2006, par. 3.5, p. 47 accredited doping control laboratory Netherlands, May 31, 2006, n.37. “Pound: Verbruggen was the leak”, 17 Hedwig Kröner, “The author of it all”, “INRS-Institut Armand Frappier”, 23 Emile N. Vrijman et al., Report Cycling News, September 16, 2005. Cycling News, September 7, 2005. Pointe-Claire, Quebec, Canada, said they Independent Investigation Analysis 16 According to the “Vrijman report”, the 18 “For the first time, and these are no longer had been extremely surprised at her labo- Samples from the Tour de France, expression “additional information” rumours or insinuations, these are proven ratory that “urine samples could have been Scholten c.s. Advocaten, The Hague, the should be understood to mean: “as the scientific facts; someone has shown me tested in and have revealed the pres- Netherlands, May 31, 2006, n.75. following information that is normally not that in Armstrong had a banned ence of EPO”. According to Ayotte, 24 UCI press release, “Analysis of samples included in a routine research report: i.e. substance called EPO in his body”. See: “EPO - in its natural state or the synthe- from the Tour de France: the code numbers present on the original Angela Doland, “Tour Chief: Armstrong sized version - is not stable in urine, even Independent investigator appointed by glass bottles used for doping controls dur- Doping Proven Fact”, Associated Press, if stored at minus degrees”. See: the UCI”, UCI, Aigle, Zwitserland, ing the and the Tour de France, August 24, 2005. Clarles Pelkey, “Top lab official wonders if October 6, 2005. but also the name of the sport, the name 19 Hans - Joachim Seppelt, “Pound sieht delayed testing is possible. We are not that 25 Letter from Pat McQuaid, President, of the race, codes indicating the succes- Dopingaktivität bei Armstrong”, lucky here, says Canada’s Christiane UCI, to Emile Vrijman, independent sive deliveries of samples to the LNDD.” Netzeitung, September 5, 2005. Ayotte”, VeloNews, August 23, 2005. investigator (November 9, 2005). See: Emile N. Vrijman et al., Report 20 Marije Randewijk, “Een zaak met 22 Emile N. Vrijman et al., Report Independent Investigation Analysis duidelijke feiten” [A matter of clear facts], Independent Investigation Analysis
4 2007/1-2 ARTICLES samples conducted for doping control purposes in general and for the obtained, and (v) how the testing results concerned must, finally, be Prohibited Substance EPO in particular; assessed from the perspective of enforcement. 3. examine the manner in which the LNDD -after having completed the analyses of the aforementioned urine samples- subsequently report- 3.2 Analyses LNDD of the urine samples from the 1999 Tour de ed its findings, to whom it did report those findings and why, in par- France ticular with regard to the inclusion of data allowing the owner of the The investigators have taken the position that the anayses results of sample to be identified; urine samples from the 1999 Tour de France identified by the LNDD 4. examine allegations that a number of these urine samples should be as “positive” in it’s final reserach report do not qualify as a regarded as constituting a so-called adverse analytical finding under “Presumptive Analytical Finding”30, let alone an “Adverse Analytical applicable anti-doping rules of the UCI; and, if so Finding” as respectively defined in either WADA’s “International 5. give an opinion on whether or not these alleged adverse analytical Standard for Laboratories” (“ISL”) or “World Anti-Doping Code” findings may be considered for an apparent anti-doping rule violation (“WADC”)31. justifying the opening of disciplinary proceedings according to the This is further compounded by the fact that the “accelerated meas- applicable anti-doping rules, regulations and procedures of the UCI; urement procedure” used for conducting the analyses of the urine sam- and ples from the 1998 and the 1999 Tours de France was not validated and 6. examine how confidential research reports and doping control docu- to date never fully disclosed by the LNDD to the investigator. ments came in the possession of an unauthorized Third Party.”26 Furthermore, the LNDD has also not disclosed the standards for declaring a sample to be allegedly positive under the research and no It is evident from the above list that the investigation the UCI intend- assessment has been made as to whether those standards comply with ed to have conducted by the independent investigator, entailed moer the current WADA rules32 for declaring a r-EPO screen to be pre- then just finding the answer to the question how confidential infor- sumptively positive33. mation in this matter - i.e. the analyses results of the urine samples Moreover, the LNDD admitted that it is unable to produce any from the 1999 Tour de France and the identity of the riders concerned “chain of custody”, making it impossible to link, in a sufficiently reli- - could have been leaked and who or which body had been responsi- able manner for doping control purposes, an analysis result to a par- ble for this. No fewer than four (4) of the six (6) issues that were to ticular sample. Moreover the fact that the samples were opened previ- be examined relate, either directly or indirectly, to the analyses con- ously and used for unknown research purposes means that the ducted by the LNDD in this matter and their evaluation, thus mak- “integrity” of the urine samples from the 1998 and the 1999 Tours de ing it clear where the focal point of the independent investigation that France can not be guaranteed as required by the applicable rules34. was to be carried out in this matter would lie, namely on the analysis Consequently, the LNDD is also unable to prove, let alone guarantee, of the urine samples collected from the 1998 and 1999 Tours de France that a strict temperature control with regard to the urine samples from by the LNDD. the 1998 and the 1999 Tours de France had been maintained continu- At the same time, UCI chairman, Pat McQuaid, also emphasized ously all the way through from receipt, sometime in 1998 or 1999, to in the aforementioned “Letter of Authority” the independent nature of their final disposition, let alone that this had been done at a temper- the investigation to be conducted by specifying that: ature of -20°C, given that the contents of some of these urine samples had already been thawed once before, as some of these had been “Mr. Vrijman is fully authorized by the UCI to make any inquiry he opened before for unknown research purposes35. deems necessary and appropriate to fulfil his mission.”; 3.3 The LNDD’s report and, further, that: The investigators are of the opinion that the manner in which the LNDD documented and eventually reported the findings of the “In conducting his investigation and preparing his report, Mr. Vrijman research it conducted on the urine samples from the 1999 Tour de is to be free from control of the UCI, and any person working for, or France in this matter is contrary to the applicable rules and regula- associated with the UCI and/or its members.”27 tions for WADA-accredited doping control laboratories with regard
McQuaid concluded his “Letter of Authority” by calling explicitly on 26 Id. requirements. Mr. Paul Scholten has been all persons and bodies associated with the UCI’s doping control pro- 27 Id. responsible for providing the necessary gramme - including WADA and the LNDD - to cooperate fully and 28 Id. administrative support. completely with the independent investigation: 29 Although the request to conduct the 30 A “Presumptive Aanalytical Finding” is independent investigation in this matter identified as “The status of a Sample test had been directed at the author only, the result for which there is an adverse screen- “that all persons associated with the UCI and its doping control pro- actual investigation has been conducted ing test, but a confirmation test has not gram -including the LNDD, the World Anti-Doping Agency (WADA), by a team consisting, besides the author, been performed.”. WADA, “International the various WADA accredited doping control laboratories and all offi- of Dr. Adriaan van der Veen, a scientist Standard for Laboratories”, Version 4.0, cers, directors and staff of those laboratories, national cycling federa- currently working for the Dutch August 2004, Lausanne, Switzerland, p. tions, as well as coaches, administrators, officials, cyclists and other Metrology Laboratory, the Nederlands 11 [hereinafter ISL]. individuals associated with international cycling and/or cycling events- Meetinstituut (NMi), in Delft, the 31 WADA, World Anti-Doping Code, Netherlands and Mr. Paul Scholten, cur- Lausanne, Switzerland, 2003, shall fully and completely cooperate with Mr. Vrijman and his investi- rently heading Scholten c.s. advocaten in “Definitions”, p. 72 [hereinafter WADC]. 28 gation.” The Hague, the Netherlands. Being an 32 WADA, supra at 30. See also: WADA, internationaly reknowned expert regard- Technical Document - TD2004EPO, III. Findings of the independent investigation ing the application by laboratories in gen- “Harmonization of the method for identi- 3.1 The investigators29 have, as part of their independent investiga- eral and doping control laboratories in fication of Epoetin alfa and beta (EPO) particular of the international standard and Darbepoetin Alfa (NESP) by IEF- tion, examined in detail all relevant aspects of the research conducted “ISO/IEC : ”, “General require- double blotting and chemiluminescent by the LNDD in this matter and have included such aspects in their ments for the competence of testing and detection”, version 1.0, Montreal, Canada, final opinion on this matter. As it is impossible to discuss all the calibration laboratories” (hereinafter October 15, 2004 (approved January 15, aspects in the context of this contribution, I will limit myself in this “ISO/IEC international standard”), 2005). article to those conclusions relating to the manner in which (i) the Dr. Van der Veen has been responsible for 33 Vrijman, supra at 16, § 4.58, p. 93. research concerned was conducted in terms of the laboratory condi- the evaluation of all of the technical 34 At least not for doping control purposes. issues of the independent investigation Vrijman, supra at 16, § 4.59 - 4.60, p. 93 - tions, (ii) the urine samples were analysed were managed and han- concerning the measurements and related 94. dled, (iii) the results of the research thus obtained were reported, (iv) matters such as the application of proce- 35 Vrijman, supra at 16, § 4.56, p. 91 - 92. other persons and bodies subsequently handled the information thus dural rules and implementation of
2007/1-2 5 ARTICLES to documenting and reporting, as set out in the relevant laws and it was confronted with Mr. Ressiot’s request. Secondly and more rules in this respect36. importantly, the investigators believe that the copies of the aforemen- The LNDD should - under the aforementioned rules - have made tioned doping control forms provided by the UCI to Mr. Ressiot, a reservation in its research report with regard both to the (degree of) while perhaps useful for the identification, were not material for iden- representativeness of the reported analyses results as well as to the tifying Armstrong as having been one of the riders supposedly respon- traceablity of these results to specific urine samples and, additionally, sible for having submitted one or more of the urine samples from the should have refrained from including in its research report any (addi- 1999 Tour de France which the LNDD alleges tested “positive”43. tional) information which could possibly be used to link the reported analyses results with the identity of the rider(s) supposedly responsi- 3.5 WADA’s role ble for having submitted these urine samples at the time37. Finally, the As regards the attitude and conduct of WADA, the investigators have LNDD should have refrained from making any statements in the come to the conclusion that the request made by WADA to the media which violate the “athlete’s confidentiality” which it must neces- LNDD - that it should include in its research report not only the sarily respect in this matter38. analyses results of each of the urine sample from the 1999 Tour de If, on the other hand, the LNDD had stated in its research report France, but also the code numbers present on the original glass bot- that it: tles used to collect and store these urine samples when collected dur- ing the 1999 Tour de France - was the condition without which the (i) when testing the urine samples from the 1999 Tour de France, relevant article in L’Equipe could never have been written, let alone had not used the mandatory analytical methods prescribed in this that this affair could ever have arisen44. The investigators are, further- regard for WADA-accrdited doping control laboratories, but more, of the opinion that there was no reason whatsoever for WADA instead had used an analytical method which was neither validated, to make any such request to the LNDD and consider the justifica- nor approved by WADA and which differed considerably from the tion(s) (subsequently) given by WADA to be implausible. The above mandatory required analytical methods for r-EPO; considerations necessarily entail, in the investigators’ opinion, that (ii) was not able to provide the required “chain - of - custody” for WADA officials should have refrained in this matter from (continual- any of the analysed urine samples, in the knowledge that several of ly) making statements in the media which appeared to be intended to these urine samples had previously been opened for other unknown give weight to the accusations appearing in L’Equipe but which were, research purposes; and in actual fact, incorrect and, moreover, violated the “athlete’s confiden- (iii) had refrained from including in its report any (additional) tiality” which they were required to respect in this matter45. information which could possibly be used to link the reported analyses results, on the one hand, with the identity of the rider(s) 3.6 Evaluation of the results of the investigation supposedly responsible for having submitted the urine samples In view of the above-mentioned findings, it will come as no surprise concerned at the time, on the other; that the investigators reached the conclusion that there is no question, nor can there have been any question, that an anti-doping rule viola- the article in L’Equipe could not have been written and there would tion had occurred in this matter, and that the UCI is therefore recom- have been no grounds whatsoever for the commotion and speculation mended: in this matter which have since arisen39. By commenting in public on (various aspects of) this matter in its role as WADA - laboratory, how- “to refrain from initiating any disciplinary actions whatsoever regard- ever, the LNDD has not only violated the confidentiality in this mat- ing those riders alleged to have been responsible for causing one or more ter which it was required to observe, but it has, moreover, further alleged “positive” findings, on the basis of the confidential reports of the aggravated the existing misunderstandings surrounding its analysis of LNDD “Recherche EPO Tour de France 1998” and “Recherche EPO the urine samples from the 1999 Tour de France 1999 and hence Tour de France 1999”, and to inform all of the riders involved that no caused a (further) increase in the public commotion40. action will be taken based on the research testing by the LNDD.”46
3.4 The UCI’s role IV. The “WADA Statement” The investigators reject the suggestion that it was the UCI itself 4.1 Structure of the WADA Statement which, by handing over copies of the doping control forms pertaining An initial consideration (of the contents) of the WADA Statement to Lance Armstrong from the 1999 Tour de France to the journalist confirms the picture outlined above with respect to the criticism that Ressiot, violated the “athlete’s confidentiality” which all persons and has so far been expressed of the findings of the independent investi- bodies involved in this matter were required to respect41. gation in this matter. Eight (8) of the twelve (12) pages of this response Firstly, at the time Ressiot submitted his request to the UCI, there are used to describe certain facts and procedural aspects of the was absolutely no question (yet) of a possible “doping affair” relating research that was carried out which are considered relevant. WADA to Lance Armstrong, or the 1999 Tour de France. The UCI was there- reserves no more than four (4) pages for its criticism of the substance fore not acting in the capacity of responsible “Anti-Doping of the research that was conducted, and it is worth noting that a sub- Organization” (“ADO”), as provided for in the applicable regula- stantial part of that criticism is expressed in such general terms that it tions42. The UCI did not know and could not reasonably have known cannot be linked (any longer) with concrete findings of the investiga- that “athlete confidentiality” might be an issue for consideration when tion.
36 This relates, successively, to the following See: Vrijman, supra at 16, § 4.66, p. 99 and sequence of each of the batches, as well as he did not necessarily need copies of the relevant legislation and regulations: § 4.72, p. 101. the exact number of urine samples per doping control forms of Lance - WADA, supra at 16, Annex B, “Laboratory 37 Vrijman, supra at 16, § 4.73, p. 101 - 102. batch, in the same (chronological) order as Armstrong from the Tour de France Code of Ethics”; 38 Vrijman, supra at 16, § 4.86, p. 108. the stages of the Tour de France they to identify Lance Armstrong as having - International Standard, “General require- 39 Vrijman, supra at 16, § 4.73, p. 101 - 102, were collected at - was already sufficient been one of the riders supposedly respon- ments for the competence of testing and § 4.83, p. 106. to allow him to determine the exact stage sible for having submitted one () or calibration laboratories, ISO/IEC ”, 40Vrijman, supra at 16, § 1.17, p. 17. these urine samples referred to and subse- more of the alleged positive urine sam- 1999; 41 Vrijman, supra at 16, § 4.91, p. 111. quently the identity of the riders who ples.” See: Vrijman, supra at 16, § 4.22 - - World Medical Association (“WMA”), 42 WADA, “Result Management Guidelines”, were tested at that stage. While it is true 4.25, p. 65 - 67. “World Medical Association Declaration version 1.0, February 2004, art. 1.1, p.7. that possession of these forms might have 44 Vrijman, supra at 16, § 4.95, p. 113. of Helsinki, Ethical Principals for Medical 43 Vrijman, supra at 16, § 4.92, p. 111 - 112. confirmed matters for Mr. Ressiot, to 45 Vrijman, supra at 16, § 4.93, p. 112 - 113. -Research Involving Human Subjects”, “According to Mr Ressiot, the manner in permit him to claim that that six () of 46 Vrijman, supra at 16, § 1.15, p. 17. Helsinki, June, 1964; and which the LNDD had structured the Lance Armstrong’s fifteen () urine sam- - The “Code Civil”, the French Civil Code. results table of its report - i.e. listing the ples were positive, the fact remains that
6 2007/1-2 ARTICLES 4.2 WADA’s criticism with regard to the findings of the investigation “the manner in which the analyses of the aforementioned urine sam- .. Factual inaccuracies ples have been conducted by the LNDD, in particular with regard to The main charge which WADA levels at the investigators in this mat- compliance with any applicable procedures for WADA accredited lab- ter is that in their report the investigators wrongly created the impres- oratories regarding research on and the analysis of urine samples con- sion that the LNDD should have conducted its research of the urine ducted for doping control purposes in general and for the Prohibited samples from the 1999 Tour de France in the same manner and using Substance EPO in particular”; the same analytical procedures as it should have done when examin- ing these urine samples for doping control purposes: and, moreover, to investigate the accusations that:
“The process used by the French laboratory in conducting its research “a number of these urine samples should be regarded as constituting a was not the process used for analyzing samples for the purpose of sanc- so-called adverse analytical finding under applicable anti-doping rules tions. Mr. Vrijman, at all times, confuses this fundamental difference of the UCI.” and seems to indicate that, in conducting research, the laboratory was required to carry it out in the same manner as for analyzing samples This means that the mandate is to establish not just the manner in for adverse analytical findings. This is not the case, and Mr. Vrijman, which the LNDD conducted its “scientific research” of the urine sam- in directing himself to the rules relating to samples collected for analy- ples concerned, but also how this “scientific research” and the results sis rather than understanding the difference for research, has totally thereof relate to the manner in which these urine samples are normal- misdirected himself in his inquiry.” 47 ly analyses in WADA-accredited doping control laboratories. After all, according to the WADA Code and the UCI Anti - Doping Rules, there Additionally, WADA asserts that it is incorrectly suggested in the can only be an “Adverse Analytical Finding,” or an “anti-doping rule investigation report that WADA was not formed until 2003. “As any violation” if the urine sample concerned has been analysed according expert in anti-doping matters knows, WADA was formed in 1999. The to the mandatory prescribed analytical methods and procedures Code, for which WADA is responsible, and its allied Standards, have been which are approved by WADA. This makes a comparison between the in place since 1 January 2004”, states WADA in the aforementioned “accelerated measurement procedure” applied by the LNDD and the Statement48. mandatory prescribed procedure for the analysis of urine samples for Finally, WADA says in its Statement that it did not exercise any doping purposes unavoidable. pressure on the LNDD in this matter and that there was no “leak” WADA fails to specify on what grounds it has come to the conclu- from WADA49. sion that it has been suggested in the investigation report that WADA was formed in 2003, and not in 1999. The investigators are in any “WADA solely advised the laboratory it would be interested in the event unaware of having made any such suggestion in their report. To findings, and disclosed this in the response WADA gave to Vrijman’s the extent that this may nonetheless be the case, the investigators fail questions. There was no other action taken by WADA in relation to the to see the relevance of this with regard to the correctness of their find- publication of the results of the research.”50 ings in this matter. WADA asserts, finally, that it has not acted wrongfully in this mat- .. Aspects which were wrongly not investigated ter and has not exercised inappropriate pressure on the LNDD to Furthermore, WADA is of the opinion that the investigators have include (additional) information in its research report, let alone that wrongly neglected to include the following aspects relating to this it was responsible for any leak, and furthermore that it took no other matter in their investigation. For example, it states, the investigators action in relation to the publication of the results of the analysis. neglected: Yet it was the LNDD itself which has stated that it was put under pressure by WADA during a period of almost six (6) months to 1. to establish in their report which rules and laws were applicable in include the aforementioned “additional information” in its research 1999 at the time of the events which led to the research being con- report, in spite of the fact that the information concerned was not ducted51; and necessary for a better understanding of the research that had been 2. to inquire into why the UCI sought Armstrong’s consent for the conducted, nor for the interpretation of the analyses results. In the release of copies of all the doping control forms relating to him absence of further cooperation and information, no evidence has been from the 1999 Tour de France as well as into why Armstrong gave found for any leaks from WADA in relation to this matter. It remains his consent to this request52. nonetheless remarkable that the journalist Ressiot should state in an interview that one of reasons for focusing on Armstrong, while pay- 4.3 Response to WADA’s criticisms ing little or no attention to the six other riders who might also have .. Factual inaccuracies submitted positive urine samples during the 1999 Tour de France, was It would appear that WADA has not studied the Vrijman report, or at the fact that Armstrong, as “patron of the peloton”, “addressed WADA least not fully, before expressing its criticism in relation to it. Firstly, director Dick Pound sharply by writing an open letter which got pub- nowhere in their report do the investigators assert that the LNDD lished in a lot of newspapers.”53 was obliged, when conducting its testing of the urine samples from Finally, it is incorrect that WADA took no further action in rela- the 1999 Tour de France, to use the same analytical methods and pro- tion to the publication of the results of the research. It was WADA cedures which are mandatory when testing urine samples for doping that, less than two days after the publication of Ressiot’s article in control purposes. Additionally, the investigators have stated, with L’Equipe, insisted that the UCI carry out an investigation and it was respect to the “accelerated measurement procedure” used by the LNDD, WADA that commented that the question of whether there might that this procedure does not satisfy the relevant requirements, includ- possibly be evidence for a doping violation in this matter should be ing those relating to conducting of research, and that the reported an integral part of such an investigation, including the identification analytical findings may therefore not be qualified as “analytical find- of the riders who at that time were involved with the use of r-EPO54. ings”. This is not just because it concerns a non-validated analytical method, also the criteria the LNDD applied to declare a urine sam- ple “positive” are unknown, and no information has been forwarded as to how these criteria might relate to those normally applied in case of mandatory prescribed analytical methods and procedures. 47 WADA, supra at 12, p. 8-9. 51 WADA, supra at 12, p. 10-11. Additionally, the investigators have been requested explicitly in the 48 WADA, supra at 12, p. 10-11. 52 WADA, supra at 12, p. 9-10. “Letter of Authority” to establish: 49 WADA, supra at 12, p. 11. 53 Hedwig Kröner, supra at 17. 50 Id. 54 Vrijman, supra at 16, § 2.4, p. 25-26.
2007/1-2 7 ARTICLES 4.3.2 Aspects which were wrongly not investigated judgement, that the research conducted by the LNDD satisfies all reg- With regard to this part of its criticism, WADA has also manifestly ulatory requirements and that the findings thus obtained are represen- failed to recognise certain issues. For example, the Vrijman report tative, even though the LNDD itself acknowledges that, with regard examines in detail the question of which regulations must be deemed to the analysis of the urine samples as well as to the storage of such relevant in this matter as regards the addressing of the various issues samples, it did not act in accordance with the relevant mandatory of law in this matter, including the question of who or which body procedural requirements and analytical methods prescribed for must now be considered as the “owner” or “entitled party” with regard WADA-accredited doping control laboratories. In spite of a statement to the urine samples concerned55. Perhaps this is the reason why from the LNDD to the contrary, WADA maintains that it did not WADA mistakenly designated the so-called “1999 Olympic Movement exercise (inappropriate) pressure on the LNDD in this matter also to Anti-Doping Code” as leading in relation to this matter, whereas it is include in its research report, alongside the analytical findings, (addi- evident from the investigation report that this should be the “1999 tional) information for each of the urine samples analysed by it, for IOC Medical Code” because the first code mistakenly referred to by which, viewed objectively, there is moreover not a single reason, and WADA above, the so-called “1999 Olympic Movement Anti-Doping the relevant statements issued in respect to this are not, or are barely, Code”, did not come into force until 1 January 2000. plausible. The continually repeated accusation that the UCI is itself WADA’s conclusion that the investigators neglected to inquire into responsible for the breach of confidentiality in this matter is a further why the UCI sought Armstrong’s consent for the release of copies of example. WADA claims that no blame can therefore be attached to it all the doping control forms relating to him from the 1999 Tour de in this matter. After all, “Without a breach of rule, there cannot be alle- France as well as into why Armstrong gave his consent to this request gations of misbehavior or wrongdoings. There have not been any”57. is incorrect. This is also the case with regard to the conclusion that That WADA understands very clearly that even without a breach there is allegedly evidence of a “serious factual and process deficiency, of rule there can be evidence of wrongdoings is evident from the fact which cannot be remedied in any fashion” because the investigators are that WADA in its Statement fails to address in any way the investiga- of the opinion that further investigation in relation to this aspect tors’ observation that its request to the LNDD - to also include (addi- would not serve any purpose since the relevant article in L’Equipe tional) information in the research report - was the condition in this could also be published without the relevant copies of the doping matter without which the relevant article in L’Equipe could never control forms of Lance Armstrong from the 1999 Tour de France. have been written, let alone that this affair could ever have occurred. The Vrijman report not only specifies in detail why Ressiot had The existence of this recognition, but also the knowledge of having requested the UCI to make the doping control forms of Lance acted inappropriately in this manner, is perhaps most tellingly illus- Armstrong from the 1999 Tour de France available to him, but also trated by the fact that there is not a single reference to the request con- how the UCI handled this request and the reason(s) for this. The cerned in the listing of relevant facts in the Statement. investigators’ conclusion that the release by the UCI of copies of the The above might actually explain the absence of any response or aforementioned doping control forms to Ressiot must not be deemed reaction, let alone action, from the “International Olympic Committee” material to the publication of the relevant article in L’Equipe because (“IOC”), (umbrella) “International Sports Federations” (“IFs”) and Ressiot would have been able to write the article concerned even with- national authorities in relation to the findings of the independent out these copies follows from the comments on this matter which investigators in this matter as set out in the aforementioned Vrijman Ressiot himself made in an interview on September 7, 2005. report. After all, they were and still are, all “stakeholders” of WADA.
Q“How can you know that four of the positive samples in 1999 were Postscript taken after the prologue?” However, on January 7, 2007, the IOC Executive Board decided to A“When you read the results table of the laboratory, you see that the first approve the conclusion and recommendation made by the IOC series of samples that arrived in Châtenay-Malabry (the four flasks) Ethics Commission concerning the complaint submitted on behalf of bear one number that differs from the next number of presumably the Lance Armstrong against WADA and Mr. Richard Pound of WADA first stage, where Lance’s sample also revealed traces of EPO. Therefore and IOC member, which was founded essentially on the Vrijman we can conclude this.” report. According to the IOC Ethics Commission it appears from the Q“But the names of the four riders tested at the prologue 1999 are no press cutting attached to the complaint, that: secret?” A“Yes, that is true. If you take the book L.A. Confidential, on page 202, “Mr Richard Pound made personal statements which could have been the names of the riders that were tested after the prologue are listed. regarded as likely to impugn the probity of an athlete, given the high [Cycling news knows of at least one other source which would also profile of the sports personalities in question. reveal those rider’s names] But I don’t want to take the responsibility of The Ethics Commission, like all the Olympic family members, can only publishing them because on the lab results table, there are very techni- approve of and support the unceasing fight against the scourge of dop- cal remarks added to one of the prologue samples, which also tested pos- ing conducted by Mr Richard Pound, WADA Chaitman and IOC itive but where some sort of reservations were made by the lab director. member. So we decided not to publish those names, as we’d need the original Nonetheless, it recalls that, in accordance with the principle set out 1999 protocols to identify which sample belonged to whom. But the con- under point 4 of the Fundamental Principles of Olympism in the cerns of the lab director weren’t directed at Armstrong’s sample.”56 Olympic Chater, “the Olympic spirit which inspires the whole Olympic Movement, requires mutual understanding, a spirit of friendship, soli- 4.4 Conclusions with regard to the WADA Statement darity and fair play”within the Olympic Family. In this regard, a It is evident, in view of the above, that WADA is unable to specify, let degree of prudence is indispensable out of respect for the Olympic Spirit. alone substantiate, the “holes” which it claims to have identified in the As a result, the Ethics Commission recommends the IOC Executive Vrijman report. Not a single point of the criticism levelled by WADA Board remind Mr Richard Pound of the obligation to exercise greater of the investigators’ conclusions as set out in the aforementioned prudence consistent with the Olympic spirit when making public pro- report is factually correct, let alone correct at law. nouncements that may affect the reputation of others.” At the same time, it is remarkable that WADA with respect to the main aspects in this matter - in spite of overwhelming evidence to the contrary - nonetheless continues to maintain in full its own interpre- tation of the facts. For example, WADA maintains, against better
55 Vrijman, supra at 16, § 4.47, p. 80-84. 57 WADA, supra at 12, p. 10. 56 Hedwig Kröner, supra at 17.
8 2007/1-2 ARTICLES Appendix but by a press article published in the French sports daily L’Equipe on 23 August 2005, under the title “le mensonge d’Armstrong” International Olympic Committee Ethics Commission (“Armstrong’s lie”), revealing that traces of EPO had been found six Decision with Recommendation No. D/01/07 times in the urine of American cyclist Lance Armstrong, winner of the Case No.-03/2006 Tour in 1999. After noting that the EPO detection tests carried out in December Mr Lance Armstrong on the leftover samples were not intended to expose anyone cheating v/ during the 1999 Tour, the author of the article explained that he had Richard Pound, IOC member and WADA Chairman, been able to compare the numbers of the samples taken from the rider and the World Anti-Doping Agency (WADA) Lance Armstrong, recorded on the doping control forms completed by the Tour doctor in 1999, and match these with the number of the Referral: samples tested as part of this scientific study, some of which the On 3 July 2006, the Ethics Commission received a complaint from LNDD described as positive for EPO. Mr Mark S. Levinstein, an American lawyer, on behalf of Mr Lance In the months which followed, the UCI tasked a Dutch lawyer, the Armstrong jointly against Mr Richard Pound, IOC member and former Director of the Dutch Anti-Doping Agency, with conducting, Chairman of the World Anti-Doping Agency (WADA), and against an investigation. The report from this investigation did not succeed in WADA itself. Attached to this complaint was a copy of the report on proving how the journalist had been able to obtain the different infor- the “independent investigation - analysis samples from the 1999 Tour mation, even though it did wonder for what reason the additional de France” by Mr Emile Vrijman, a lawyer in The Hague (NL), and information identifying the samples used had been included with the the appeal submitted by Mr Levinstein before the IOC Executive scientific report. It did however conclude that the research had been Board on 20 June 2006, based on the conclusions of this investiga- performed on a number of samples which had already been opened tion. and analysed previously; that there had been no internal chain of stor- After the validity of the brief which Mr Armstrong had given to his age; and that the identity and integrity of the samples was not guar- lawyer was established, the parties concerned by the complaint, anteed. As a result, the report recommended that the UCI take no dis- WADA and Mr Richard Pound, were informed by mail on 7 July ciplinary measures against the cyclists, and Mr Armstrong in particu- 2006 that they had the possibility of submitting observations. lar, on the basis of the LNDD study results. At the same time, the Ethics Commission was informed by the From all the press articles published after this affair, it appears that IOC President that the IOC Executive Board had proposed to Mr Mr Richard Pound made statements to the media which were likely Armstrong, WADA and its Chairman, the French Laboratoire to enable journalists to draw negative conclusions concerning the National de Dépistage du Dopage (LNDD) and the International integrity of Mr Armstrong. Cycling Union (UCI), that they make use of the mediation procedure provided before the Court of Arbitration for Sport (CAS) to settle the Opinion: dispute between them following the publication of a press article in a) Regarding the World Anti-Doping Agency (WADA) the French newspaper L’Equipe on 23 August 2005. The Ethics Commission notes that, because of the International The Ethics Commission members wished to allow the greatest pos- Convention Against Doping in Sport signed under the auspices of sible scope for mediation to resolve the dispute. UNESCO in Paris on 19 October 2005 by the IOC and various In a letter dated 13 July, WADA asserted that, as an international States, WADA is a body with its own status and organisation, which organisation, it did not fall under the jurisdiction of the IOC Ethics provides inter alia for equal representation of the Olympic Movement Commission. and governments of States which are party to it, as well as equal In a letter dated the same day, Mr Richard Pound asserted that, as responsibility for the funding of it. Consequently, this organisation he was involved as the Chairman of WADA, the jurisdiction of the falls outside the sole sphere of the Olympic Charter. Ethics Commission did not apply to him for the same reasons as those The IOC Ethics Commission recalls that its mission is to be found cited by WADA. exclusively within the framework of the Olympic Charter and finds After being informed of the official decision regarding the impos- that it is not able to intervene to evaluate the conduct of an institu- sibility of implementing the mediation procedure before the CAS, the tion which is not bound by the application of Rule 23 of the Olympic Ethics Commission Chairman asked Mr Lance Armstrong to refer the Charter. case to the Commission once more. As a result, the Ethics Commission decides, pursuant to point B.5 Mr Armstrong confirmed his complaint by return of fax on 25 of its Regulations, to declare itself to have no jurisdiction with regard October 2006 in exactly the same terms as in the complaint filed on to the complaint against WADA. 3 July 2006. At his request, Mr Levinstein was allowed a period of time in which to submit any relevant document. On 27 November b) Regarding the personal activity of Mr Richard Pound, IOC member 2006, it was noted that no new document had been sent. On 9 With regard to Mr Richard Pound, IOC member, the Ethics January 2007, Mr Levinstein sent a copy of a press article dated 7 Commission notes that he is an Olympic party as defined by the January 2007. Code of Ethics and that, based on the application of the Code of Mr Richard Pound’s observations on these various documents were Ethics by the IOC Session and Executive Board, IOC members in requested. But the latter did not react. their personal activities must respect their obligations vis-à-vis the Olympic Charter and Code of Ethics at all times, including in their Facts: activities outside the IOC. The following facts emerge from the documents sent: Mr Armstrong’s complaint is founded essentially on the report of After two editions of the Tour de France cycling race in 1998 and 1999, the “independent investigation - analysis samples from the 1999 Tour the leftover samples from those tested as part of the anti-doping con- de France”. From reading the conclusions of this report, it is clear that trols were preserved, with the agreement of the athletes, for scientific there is no personal reproach, against Mr Richard Pound for his activ- research purposes. The LNDD performed two studies for research ity. purposes on these samples to improve the precision and reliability of As a result, without having to assess the content of this report, the the test results, particularly as regards the detection of EPO. The Ethics Commission may observe that its conclusions do not contain results of the first study (on the samples from 1998) were published in any incriminating element regarding the personal conduct of Mr 2000 in the scientific journal Nature, without producing any reaction Pound, IOC member. from the media or the athletes. The results of the second study (on the However, from the press cuttings attached to the complaint, it samples from 1999) were made public, not by a scientific publication, appears that Mr Richard Pound made personal statements which
2007/1-2 9 ARTICLES could have been regarded as likely to impugn the probity of an ath- Decision: lete, given the high profile of the sports personalities in question. After deliberating in accordance with its Statutes, the Ethics Com- The Ethics Commission, like all the Olympic family members, can mission decides: only approve of and support the unceasing fight against the scourge 1. to declare itself to have no jurisdiction regarding the complaint of doping conducted by Mr Richard Pound, WADA Chairman and made against the World Anti-Doping Agency; IOC member. 2. to recommend that the IOC Executive Board remind Mr Richard Nonetheless, it recalls that, in accordance with the principle set out Pound, IOC member, of the obligation to exercise greater pru- under point 4 of the Fundamental Principles of Olympism in the dence consistent with the Olympic spirit when making public pro- Olympic Charter, “the Olympic spirit, which inspires the whole nouncements that may affect the reputation of others. Olympic Movement, requires mutual understanding, a spirit of friendship, solidarity and fair play” within the Olympic Family. In Done in Lausanne, 2nd February 2007 this regard, a degree of prudence is indispensable out of respect for the For the Chairman, Olympic spirit. Pâquerette Girard Zappelli As a result, the Ethics Commission recommends that the IOC Special Representative Executive Board remind Mr Richard Pound of the obligation to exer- cise greater prudence consistent with the Olympic spirit when mak- ing public pronouncements that may affect the reputation of others.
❖ Proportionality in the World Anti-Doping Code: Is There Enough Room for Flexibility? by Jannica Houben*
The biggest advantage of the introduction of the World Anti-Doping sanctions and sanction reduction under the Code, in section 2, since Code in 2004 is the harmonization, but a disadvantage is that there these are important features in the Code. are still some unclear matters left. The drafters of the WADC opted In section 3 I will come to the main point of this article: propor- for a system of strict liability with mandatory (tough) penalties and a tionality. I will look at the way CAS used the principle of proportion- possibility of sanction reduction in the case of exceptional circum- ality before and after the introduction of the Code. In this section I stances. The question of fault or negligence only plays a role in the will also look at the recent developments in the Puerta case. determination of the sanction. In this article, I will evaluate this sys- I will end with a conclusion. tem and the rulings by the CAS. Are the sanctions imposed propor- tionate to the offenses? Does the Code leave room for the use of the 1. Strict liability principle of proportionality? If yes, does the CAS use the flexibility in The Code lies down a principle of strict liability. Under this system the Code? the question of fault or negligence only comes into play in the deter- In this contribution it is argued that the CAS does not interpret the mination of the sanction. The drafters opted for this system because Code in a correct way. Although the Code can be seen as well draft- they believed it to be the best way to fight doping in an effective man- ed, the CAS does not use the flexibility that is incorporated therein. ner. But there is hope: recently a CAS Panel held in the Puerta case1 that The rule states that the mere presence of a prohibited substance “in those very rare cases in which Articles 10.5.1 and 10.5.2 of the WADC will be sufficient to cause the loss of any results arising out of the com- do not provide a just and proportionate sanction, i.e., when there is a petition during which the positive sample was taken. Article 9 of the gap or lacuna in the WADC, that gap or lacuna must be filled by the Code stipulates that an anti-doping rule violation in connection with Panel.2” an in-competition test automatically leads to disqualification of the In this article I will, in the first section, look at the system of strict individual result. This is because the athlete had a potential advantage liability, as this is the most important part of the system of sanction- over the other athletes, regardless of whether he or she was at fault in ing. any way. Then I will evaluate the burden of proof and the different types of The system of strict liability was known before, both in CAS case law and in the vast majority of existing anti-doping rules (The IOC * Clifford Chance LLP Law Firm, T.M.C. Asser Press, The Hague, The Anti-Doping Code for example). The WADC can be seen as a codi- Amsterdam, The Netherlands. This arti- Netherlands. fication of this principle. In fact, CAS has always used the strict lia- cle is an elaborated version of a master 6 See e.g. CAS 95/141, V. v. FINA, CAS bility principle: in one of the first doping cases ever to be examined thesis at the University of Tilburg 99/A/239, UCI v. Moller. by CAS a provision was qualified as a strict liability rule3. In the pre (2006). 7 See for example: The definition of doping 4 and the proof of an anti-doping offense WADC Quigley case the CAS panel stated that the practical necessi- 1 CAS 2006/A/1025 Puerta v. ITF. (an anti-doping rule violation) under spe- ties of the fight against doping justify the application of the strict lia- 2 CAS 2006/A/1025 Puerta v. ITF, 11.7.23. cial consideration of the German legal bility rule. 3 CAS 91/A/53, G. v. International position, K. Vieweg, Marquette Sports Two purposes of WADA are the protection of the athlete’s right to Equestrian Federation. Law Review, vol. 37, 2004-2005 and participate in a doping-free sport and securing a harmonized, coordi- 4 CAS 94/129, USA Shooting & Quigley v. Harmonization of Anti-Doping Code nated and effective fight against doping5. To reach this second goal the UIT. through arbitration: the case law of the 5 The Court of Arbitration for Sport 1984- Court of Arbitration for Sport, F. concept of strict liability is laid down in the WADC. In a line of 6 2004, Ian S. Blakshaw, Robert C.S. Oschütz, Marquette Sports Law Review, awards the panels stated that, notwithstanding a certain degree of Siekmann & Janwillem Soek, p. 260 675 2001-2002. hardship, this strict rule was necessary. In literature too, the concept
10 2007/1-2 ARTICLES